Citation Nr: 21075212 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-78 926A DATE: December 17, 2021 REMANDED Entitlement to service connection for bilateral hand condition is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2013 to September 2015. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In an April 2021 rating decision, service connection for a bilateral shin disability was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). In a September 2020 decision, the Board denied service connection for a bilateral hand condition. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Remand, and remanded the issue to the Board. 1. Bilateral hands First, remand is required for a new VA examination and opinion. In the July 2021 JMR, the Court questioned the adequacy of the April 2017 VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2020 Board decision denied service connection for no current disability. The April 2017 VA examination did not diagnose a disability but noted functional impairment or functional loss. The Veteran reported difficulty with grip strength and use of hand tools. Where pain alone results in functional impairment of earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, the Court found the examiner did not adequately address any functional loss with repeated use over time. Notably, the examiner stated they were unable to say without resorting to speculation because the Veteran was not examined after repeated use. Accordingly, remand is required for a new VA examination to assess any functional loss attributed to a bilateral hand condition. 2. Sleep apnea Second, remand is required for an adequate VA opinion. The Veteran received an April 2021 VA examination and opinion. The examiner opined it was less likely than not sleep apnea was related to service. The examiner stated the Veteran had a sleep study, but the results of the sleep study were not included in the claims file. The same examiner opined there was no diagnosis and the symptoms were subjective. However, a review of the claims showed a March 2019 private sleep study that diagnosed mild sleep apnea. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to Present. 2. Schedule the Veteran for a VA examination for the bilateral hand condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: First, is the right-hand condition at least as likely as not related to service? Second, is the left-hand condition at least as likely as not related to service, to include left hand injury during service? Provide a rationale to support the opinion(s). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not related to service, to include complaints of sleep issues/ snoring/ apnea events during service. (Continued on the next page) Provide a rationale to support the opinion(s). 4. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.